Guarantee Trust Co. v. Hoffman

• Citation: 199 A. 781
• Parties: GUARANTEE TRUST CO. v. HOFFMAN.
• Decision Date: 20 May 1938
• Court: New Jersey Circuit Court

199 A. 781

GUARANTEE TRUST CO.

v. HOFFMAN.

Circuit Court of New Jersey, Atlantic County.

May 20, 1938.

Action by the Guarantee Trust Company, substituted trustee under the will of Sophia. Bew, deceased, for John Lee Dunlap, second, and another, against Jacob Hoffman to recover the deficiency allegedly owing to plaintiff on defendant's bond, the concomitant mortgage having been previously foreclosed. On defendant's motion to strike certain allegations of plaintiff's reply.

Allegations stricken, with leave to amend reply if desired.

Cole & Cole, of Atlantic City, for plaintiff. William Charlton, of Atlantic City, for defendant.

JAYNE, Circuit Court Judge.

This action was instituted to recover the deficiency alleged to be owing to the plaintiff on the bond of the defendant. The concomitant mortgage was previously foreclosed. The answer of the defendant avers that in the prosecution of the suit to foreclose the mortgage, this plaintiff, as mortgagee, failed to make certain tenants of the mortgaged premises parties. Guardian Life Insurance Co. v. Lowenthal, 181 A. 897, 13 N.J.Misc. 849; American-Italian Building & Loan Ass'n v. Liotta, 117 N.J.L. 467, 189 A. 118, 108 A.L.R. 1346; Polish Home Building & Loan Ass'n v. Burinefsky, 119 N.J.L. 1, 194 A. 140.

The reply of the plaintiff, in addition to a general denial of the material averments of the answer, embodies the following allegations: "Further answering the defenses, plaintiff says that: 1. Before the filing of the bill to foreclose it inquired of the defendant as to who were in the occupancy of the mortgaged premises, and he informed the plaintiff the only person in occupancy and possession was his mother, who was made a party to the foreclosure bill.

"2. A few days before the time for filing of answer to the bill to foreclose expired, the plaintiff through its representative visited the mortgaged premises and found only Rose Hoffman in possession and inquired of her who if anyone else was in possession or occupancy, and he was told that she alone was occupying the premises, and the plaintiff relied upon this as being true, and alleges that it was true."

The present motion draws in question the legal substantiality of these paragraphs of the reply. The reason assigned in support of the motion to strike them is that they are frivolous. An affidavit has been submitted tending to prove that the factual matters alleged are false and untrue. However, these allegations of the reply are not challenged as sham. Every notice of any motion addressed to a pleading shall specify the grounds thereof. Supreme Court Rule 43.

At the common law frivolous pleadings were those which were obviously and grossly insufficient, idle and frivolous. Hogencamp v. Ackerman and Brown, 24 N.J.L. 133, 137. There is, of course, a clear distinction between a sham and a frivolous pleading. A frivolous pleading is always assumed to be true, while a sham pleading must be admitted or conclusively proved to be false. Sculthorpe v. Commonwealth Cas. Co., 98 N.J.L. 845, 847, 121 A. 751. A frivolous pleading is one which on its face is legally unsubstantial, assuming its averments of fact to be true. Milberg v. Keuthe, 98 N.J.L. 779, 121 A. 713; National Surety Co. v. Mulligan, 105 N.J.L. 336, 146 A. 372. In modern practice a pleading is occasionally attacked by the contention that its allegations of fact are false and, even if assumed to be true, the pleading is legally insufficient. The ground or grounds of the motion must, however, be specifically stated in the notice.

In actions to recover an alleged deficiency on a bond and mortgage, the mere circumstance that the plaintiff in the foreclosure of the mortgage failed to make tenants of the mortgaged premises parties to the foreclosure suit, does not necessarily preclude the plaintiff in all circumstances from recovering the deficiency. See Harvester B. & L. Ass'n v. Elbaum, 119 N.J.L. 437, 196 A. 709; Stratford B. & L. Ass'n v. Wagner, 122 N.J.Eq. 452, 194 A. 440; Franklin L. & B. Ass'n v. Richman, 65 N. J.L. 526, 47 A. 426.

Moreover, the statutory provision requiring the foreclosure of the mortgage as the initial step in the proceeding for the collection of the debt has been regarded as a personal privilege and it has been held that the statutory requirement is not designed to secure any object of public policy. Thus a party may waive his privilege under the statute. Quick v. Corlies, 39 N. J.L. 11; Hellyer v. Baldwin, 53 N.J.L. 141, 20 A. 1080; Van Aken v. Tice, 60 N.J.L. 377, 38 A. 20; Crosby v. Washburn, 66 N.J.L. 494, 49 A. 455; Andrus v. Burke, 61 N.J.Eq. 297, 48 A. 228; Callan v. Bodine, 81 N.J.L. 240, 243, 79 A. 1057.

Then, moreover, it would seem that a mortgagor and obligor on the bond might make such misrepresentations concerning those having leasehold interests in the mortgaged premises under him and...